MATTHEWS, Chief Justice.
Alaska Statute 16.05.831 prohibits the waste of salmon, meaning the failure to use most of the salmon carcass.
II. FACTS AND BACKGROUND INFORMATION
The state legislature created Alaska's private non-profit (PNP) salmon hatchery program in 1976 to boost Alaska's salmon harvest.
Roe stripping occurs when a salmon's eggs — the roe — are removed from the fish (usually to be sold for human consumption) and the flesh is discarded. Although the practice was traditionally disfavored, increases in the number of hatchery chum and pink salmon and corresponding decreases in market value for these fish, together with increasing value of caviar, have made roe stripping more attractive.
Salmon physiology also contributes to this trend. Once a salmon nears the end of its lifespan and becomes exposed to fresh water, its flesh deteriorates in quality and can become extremely difficult, sometimes impossible, to sell. Yet because salmon at this stage convert nutrients into egg production, the roe remains of high quality even after the flesh has deteriorated. With poor market conditions, a high percentage of the value of a salmon can come from its roe.
Additionally, in recent years the harvests of chum and pink salmon have been so large that hatchery owners claim they have been unable to sell all of their salmon. Thus, faced with unmarketable salmon filled with lucrative eggs, hatchery operators find that their best economic option is to roe strip.
Before 1994, the Department of Fish and Game consistently interpreted the salmon waste law to prohibit all forms of roe stripping. In 1994, in response to the growing problem of excess, unmarketable hatchery salmon, the legislature considered — but failed to enact — a bill that would have modified the salmon waste law so as to authorize the Commissioner of Fish and Game to issue permits for roe stripping from hatchery salmon determined to have flesh that was "unfit for human consumption."
When this legislation failed, the Department modified its interpretation of the waste law and issued six permits allowing PNP hatcheries to strip roe from surplus brood stock salmon.
After considering several interpretations of AS 16.05.831 (the salmon waste law) — including one that would exempt all PNP hatcheries from the roe stripping restriction — the Department formed a working group to formulate regulations interpreting the salmon waste law. The group was unable to reach agreement on whether roe stripping should be authorized. Then, the Department again unsuccessfully sought to introduce legislation clarifying the salmon waste law and authorizing some forms of roe stripping. Finally, when this failed, the Department promulgated regulations 5 AAC 93.310-93.390 addressing roe stripping.
Regulation 5 AAC 93.320 authorizes the Commissioner to issue permits allowing some salmon hatcheries to engage in roe stripping of salmon:
The regulation requires a hatchery to document the estimated numbers of salmon returning to the hatchery, any attempts made to find lawful uses for the fish, and predicted financial losses if not allowed to roe strip.
Mike O'Callaghan, an officer of the non-profit organization EARTH, sued the Commissioner of Fish and Game for injunctive relief in November 1996. O'Callaghan, a pro se litigant, argued primarily that hatchery roe stripping violated the salmon waste law, AS 16.05.831; he wanted EARTH to receive the discarded salmon so that it could be used to feed the needy. Milford Sweat, a commercial Yukon River fisher, intervened, seeking declaratory relief invalidating the Commissioner's authorization of roe stripping. The superior court granted summary judgment in favor of the Commissioner on the validity of the regulation.
O'Callaghan and Sweat argue on appeal that the Commissioner promulgated the roe stripping regulation (5 AAC 93.320) without the required statutory authority and that the regulation violates the salmon waste law and other statutory and constitutional provisions. O'Callaghan and Sweat also argue that the Department maintains a practice and policy generally permitting roe stripping from excess brood stock salmon in violation of the salmon waste law. Finally, O'Callaghan contends that the superior court erred by refusing to allow him to amend his complaint, by relying on facts unsupported by the evidence, and by refusing to mandate the enforcement of the salmon waste law.
A. The Validity of 5 AAC 93.320
Regulation 5 AAC 93.320, by its terms, applied only to the 1996 and 1997
2. Standard of review
This court reviews grants of summary judgment de novo.
Here, we are asked to review the validity of administrative regulations. This court applies a three-part analysis to this question.
First, we must determine whether the legislature delegated to the administrative agency the authority to promulgate regulations.
Once we are satisfied that the agency acted within the scope of its delegated power, we then consider whether "the regulation is consistent with and reasonably necessary to implement the statutes authorizing its adoption"
Finally, we consider whether the regulation conflicts with any other state statutes or constitutional provisions.
We presume the validity of an administrative regulation; the challenger bears the burden of proving it is invalid.
3. Does the Commissioner of Fish and Game have authority to promulgate regulations?
Statutory authority to promulgate rules may be either express or implied.
Alaska Statute 16.05.020 outlines generally the functions of the Commissioner, directing him to "manage, protect, maintain, improve, and extend the fish ... resources of the state in the interest of the economy and general well-being of the state" and giving him the "necessary power to accomplish" those directives.
Nevertheless, subsection (b) of the salmon waste law explicitly delegates to the Commissioner the authority to enforce and interpret the law: "The commissioner, upon request, may authorize other uses of salmon that would be consistent with maximum and wise use of the resource."
We note that the Board has authority to "adopt regulations it considers advisable in accordance with AS 44.62 (Administrative Procedure Act)" in a wide variety of fishery-related areas, including "regulating commercial, sport, guided sport, subsistence, and personal use fishing as needed for the conservation, development, and utilization of fisheries."
Sweat argues that the Commissioner's promulgation of 5 AAC 93.320 is invalid because, under Peninsula Marketing Association v. Rosier,
Because the legislature granted the Commissioner authority to promulgate rules under AS 16.05.020 and 16.05.831, we hold that the Commissioner has the authority to promulgate the regulation in question.
4. Is 5 AAC 93.320 consistent with the salmon waste law?
O'Callaghan and Sweat urge us to view the discretionary powers authorized by subsection (b) of the salmon waste law
The Department argues that subsection (b) authorizes the Commissioner to permit uses of salmon which may entail the disposal of salmon carcasses so long as the permitted use is consistent with the "maximum and wise use of the [salmon] resource."
The superior court held that "the statute clearly authorizes the Commissioner to promulgate
We believe that the question presented is both close and difficult. Section .831 is not clearly written. Taken literally, subsection (a) seems to prohibit the failure to utilize only the carcasses of salmon intended for the purposes enumerated in subparagraphs (1) through (3). What does this imply about the utilization of carcasses of salmon taken for other purposes, such as hatchery propagation or bait? There are at least two possibilities. One possibility is that the carcasses of salmon taken or "intended" for other purposes need not be utilized. Another possibility is that subparagraphs (1) through (3) are meant to define the permissible purposes for which salmon may be harvested. The first would permit the waste of any salmon not intended for the enumerated purposes. The latter reading is less literal, but it is more likely what the legislature intended. Under this latter reading, subsection (a) has two functions: it defines permissible purposes for which salmon may be harvested (and thus impliedly prohibits their harvest for other purposes) and requires that the carcasses of salmon taken for permitted purposes be utilized for those purposes.
If we accept that subsection (a) both defines permitted purposes and mandates carcass use for those purposes, what is to be made of subparagraph (a)(3)? As the Department represents, this provision authorizes some uses which ultimately involve the disposal of salmon carcasses. One possible answer is that scientific, educational, or display purposes "utilize" salmon carcasses within the meaning of the statute even if the only use of the carcass is as a disposable holder of the viscera or skin. Alternatively, the statute may imply that the flesh must be saved for other permitted uses to the extent that this is practical given the uses permitted under subparagraph .831(a)(3).
Turning to subsection (b), it most literally seems to be a grant of authority to the Commissioner to add other uses to those listed in subparagraphs (1) through (3) of subsection (a). If we accept the dual purpose interpretation of subsection (a) — that it both defines permitted purposes for which salmon may be taken and requires that the carcasses of salmon taken for permitted purposes be utilized — the same applies to additional uses authorized by the Commissioner pursuant to subsection (b). For discussion purposes, assume that the Commissioner added "hatchery propagation" to the list. Could carcasses of salmon be discarded after roe or milt were extracted? This question is much the same as that posed by subparagraph (a)(3), discussed above. Either hatchery propagation is a permitted utilization of the salmon carcass in itself, even though the carcass is eventually thrown away, or the flesh must be used for other permitted purposes to the extent practical given the intended hatchery propagation use.
Now consider the current case. The Commissioner has defined as a use the taking and sale of roe from hatchery salmon caught by hatcheries in terminal or special harvest areas if the salmon have no other practical use. Can the carcasses of these salmon be discarded? Based on the preceding discussion, the answer is "yes." Either the taking and sale of roe is a permitted utilization of the carcass in itself, in the same way that a carcass can be said to be utilized in hatchery propagation, or the carcass must
We also hold that the Department could rationally find the contested regulation reasonably necessary to implement the salmon waste law. The Department argues that, due to the current market conditions for hatchery salmon, roe stripping is the wisest, and the least wasteful, use for salmon that would otherwise not be used at all: "harvesting and recovering value from the unmarketable salmon was less wasteful — and more consistent with protection of the salmon resource — than allowing the salmon to remain in the water, completely unused, where they could interfere with natural salmon stocks and could also cause public nuisances." We defer to the Commissioner's determination that sale of roe from unmarketable fish is a "maximum and wise use" of salmon.
Finally, we hold that the regulation is reasonable and not arbitrary. This inquiry considers whether "the agency has taken a `hard look' at the salient problems and has `genuinely engaged in reasoned decision making.'"
5. Does 5 AAC 93.320 violate any other state statute or constitutional provisions?
To be valid, an administrative regulation must not violate existing state statutes or constitutional provisions. Sweat and O'Callaghan assert that 5 AAC 93.320 violates the common use clause of the Alaska Constitution,
i. The common use clause
O'Callaghan claims that 5 AAC 93.320 violates the Alaska Constitution's common use clause, article VIII, section 3, which
ii. The market parity requirement
Sweat and O'Callaghan also contend that allowing roe stripping contravenes the statutory requirement of "market parity" for hatchery fish. We disagree.
Alaska Statute 16.10.450(b) mandates that "[f]ish returning to hatcheries and sold for human consumption shall be of comparable quality to fish harvested by commercial fisheries in the area and shall be sold at prices commensurate with the current market."
With regard to the roe, O'Callaghan and Sweat complain that PNP hatcheries should not be able to sell roe that is only available if the fish mature to the point of being unmarketable. O'Callaghan argues that the roe increase in number and quality as the flesh decays, and thus roe sold from stripped fish is not of comparable quality to those produced by other fishers. Sweat similarly argues that the relevant "current market" for salmon is one in which the salmon flesh can be put to some use other than being discarded. Essentially, this is an argument that 5 AAC 93.320 allows PNP hatcheries to obtain unfair market advantage by producing roe that is of higher quality than can be obtained by traditional means, thus violating the market parity requirement. In our view this argument lacks merit. The aim of subsection .450(b) is to prevent hatcheries from over-saturating the market with poor quality salmon and thus adversely affecting the reputation of Alaska salmon.
iii. The Pacific Marine Fisheries Compact
Third, O'Callaghan argues that 5 AAC 93.320 violates the Pacific Marine Fisheries Compact, codified at AS 16.45.020. He points to provisions in the Compact which promote "prevention of physical waste of the fisheries,"
B. Excess Brood Stock Roe Stripping
O'Callaghan and Sweat also raise claims specifically related to roe stripping of brood stock salmon. They allege that the Department maintains an informal policy and practice of allowing roe stripping of excess brood stock salmon and that the policy violates the
The Department contends that except under the conditions specified in 5 AAC 93.320 it no longer permits roe stripping from excess brood stock, i.e., salmon that were caught for purposes of propagation but whose roe were never used. The Department distinguishes between surplus brood stock and roe that are unsuitable for fertilization:
On the other hand, "[d]uring brood stock operations a number of salmon selected as brood stock are found to contain unripe eggs that are not suitable for fertilization. The percentage of unripe eggs frequently approaches ten percent." Under 5 AAC 40.010(b), hatchery operators may discard the carcasses of salmon actually used for propagative purposes.
Although hatcheries were allowed to strip roe from excess brood stock salmon under 5 AAC 40.010(b) before 1995, the Department's current interpretation of that regulation is that excess brood stock are subject to 5 AAC 93.320. As an issue separate from the validity of this regulation, appellants' arguments concerning excess brood stock roe stripping are moot.
Sweat also argues that the Department may not authorize the commercial sale of roe, in light of AS 16.10.420(7). He contends that this statute only permits the sale of salmon eggs to the Department or to another hatchery for propagative purposes.
C. Refusal to Allow Amendment of O'Callaghan's Complaint
O'Callaghan also claims the superior court erred when it declined to allow him to amend his prayer for relief to include invalidation of a set of guidelines issued by the Department of Environmental Conservation (DEC) in May 1997. Alaska Civil Rule 15(a), governing amendment of pleadings, states that leave to amend pleadings "shall be freely given when justice so requires." Although leave should be liberally granted, trial courts have discretion to grant or deny leave to amend pleadings, and this court will reverse only if we are left with a definite and firm conviction that the trial court erred.
O'Callaghan's motion was filed on May 25, 1997, approximately one month after the State moved for summary judgment and after briefing and oral argument on all other issues had been completed. Moreover, although the DEC regulations at issue deal with hatchery salmon and their disposal, the legal question — whether DEC has "authority to issue edicts related to the suitableness or fitness of food" — is at best tangentially related to the primary claims in this lawsuit. Therefore, the superior court did not abuse its discretion by refusing to allow O'Callaghan to amend his pleadings.
D. The Existence of Disputed Material Facts
Finally, O'Callaghan argues that the superior court "err[ed] by including so many alleged facts unsupported by the evidence as to render the opinion meaningless." We understand this as a contention that factual questions should have precluded summary judgment. However, O'Callaghan has not pointed to the existence of any disputed facts that are material. Any alleged factual disputes are irrelevant to the questions of law which are dispositive in this appeal. Therefore, summary judgment was appropriate.
We conclude that the Commissioner of the Department of Fish and Game has authority to promulgate regulations under AS 16.05.831. The contested regulation — 5 AAC 93.320 — is consistent with this statute, as well as other constitutional and statutory provisions.
CARPENETI, Justice, not participating.
(Emphasis in original.)
(Emphasis added.) Because none of the parties argue in favor of this application, we express no opinion as to whether this statute applies.
See also 5 AAC 93.350(c) ("Notwithstanding AS 16.05.831(a) and 5 AAC 93.310, a person may dispose of the carcass of a salmon from which milt or eggs are extracted under a permit issued under AS 16.10.400-16.10.480 for lawful use as brood stock.").